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Pending before this Trial Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal") is a Request Pursuant to Rule 68 of the Rules of Procedure and Evidence of the International Tribunal (the "Rules") for Exculpatory Information, filed by the Defence for Hazim Delic ("the Defence") on 21 April 1997 (Official Record at Registry Page ("RP") D 3385 - D 3392) ("the Request").

The Office of the Prosecutor ("the Prosecution") filed a Response to Hazim Delic’s Request Pursuant to Rule 68 for Exculpatory Information ("the Response") on 2 May 1997 (RP D 3511 - D 3526). On 15 May 1997, both the Prosecution and the Defence ("the Parties") argued their positions orally before the Trial Chamber.

The Trial Chamber, having considered the written submissions and oral pleadings of the Parties,

Hereby issues its decision.

1. The Defence submits the Request pursuant to Rule 68 of the Rules. This reads:

2. The Defence requests the Trial Chamber to order the Prosecution to provide copies of documents in its possession which tend to negate the guilt of the accused. In particular, the Defence requests access to and photocopies of all documents, which are in the possession or control of the Prosecution and contain evidence which show that: (1) the armed forces of the Republic of Serbia did not conduct their operations in accordance with the laws and customs of war; (2) the forces of the Bosnian Serbs did not conduct their operations in accordance with the laws and customs of war; (3) the forces of the Bosnian Serbs were not commanded by a person responsible for his subordinates; (4) the forces of the Bosnian Serbs did not have a distinctive insignia visible at a distance; (5) the forces of the Bosnian Serbs did not carry arms openly (RP 3389).

3. The Defence argues that the Prosecution has continuously asserted that the people detained at the Celebici camp were prisoners of war within the meaning of Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 ("Geneva Convention on Prisoners of War"). According to the Defence, any evidence which tends to show that the detainees could not enjoy this status because the requirements set out in Article 4 of the Geneva Convention on Prisoners of War were not met, negates the guilt of the accused, and is therefore exculpatory information within the meaning of Rule 68 of the Rules. The Defence states that such information should, therefore, be disclosed to the Defence.

4. The Defence refers to the Decision on Production of Discovery Materials rendered by Trial Chamber I in the case of the Prosecutor v. Tihomir Blaskic (Prosecutor v. Tihomir Blaskic, No. IT-95-14-T, Decision on Production of Discovery Materials, 27 January 1997). According to the Defence, the Trial Chamber in that case required of the Defence a prima facie showing of the exculpatory nature of the evidence sought. If such a showing were made, the burden would then shift to the Prosecution to state whether it has the materials in its possession, whether they contain exculpatory information and whether it believes the information is protected from disclosure by Rule 66 (C) or some other provision of the Rules.

5. The Defence asserts that, according to Article 4(A)(2) of the Geneva Convention on Prisoners of War, irregular armed forces are protected only if they comply with certain requirements, one of them being that these forces have conducted their operations in accordance with the laws and customs of war. Evidence in the hands of the Prosecution which demonstrates that Bosnian Serb forces, to which some of the detainees at the Celebici camp allegedly belonged, violated the laws and customs of war is exculpatory in the sense that it disproves one of the elements of the crime, the protected status of the victims. According to the Defence, the numerous indictments issued against the Bosnian Serbs by the Prosecutor show prima facie that the Prosecution possesses evidence of such violations of the laws and customs of war, committed by the Bosnian Serb forces.

6. The Defence argues that, if there are any problems of confidentiality impeding the disclosure of the requested information, the Trial Chamber should order that the evidence be produced under appropriate protective measures. Restricting the dissemination of the evidence, and requiring that the evidence be disclosed only in closed session are some measures suggested by the Defence.

7. The Prosecution asserts that it has already provided the Defence with all the necessary and relevant information and that any additional information is completely irrelevant. The Prosecution believes that the Request should be dismissed, as the Defence has not established a prima facie case.

8. The Prosecution argues that, as a matter of law, it is not necessary to disclose any materials concerning the status of the victims as prisoners of war, as it is irrelevant for the applicability of the 1949 Geneva Conventions and Article 2 of the Statute of the International Tribunal. According to the Prosecution, the people detained at the Celebici camp were protected persons under the Geneva Conventions, either as prisoners of war or as civilians. The Prosecution asserts that it is, therefore, not necessary to evaluate at this moment the evidence of the status of the victims as prisoners of war.

9. Further, the Prosecution argues that in law, under the 1949 Geneva Conventions and the 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, even if violations of the laws and customs of war were committed by Bosnian Serb forces or even by some of the victims in this case, this does not mean that the protection afforded to those persons as prisoners of war would be lost. The Prosecution adds that the irregular forces that were operating in the Konjic municipality did meet the conditions of the Geneva Convention on Prisoners of War as, in general, those forces were obeying the laws and customs of war. The Prosecution further considers that the conduct of other irregular forces outside of the Konjic region is completely irrelevant.

10. The Prosecution asserts that violations of the laws and customs of war can never be justified by prior violations of such laws and customs by the opposing party. It is, in the opinion of the Prosecution therefore, not necessary to consider any materials concerning the commission of violations of the laws and customs of war by the Yugoslav’s People’s Army (JNA), the army of the Federal Republic of Yugoslavia (Serbia and Montenegro) (VJ), the Bosnian Serb Army (VRS) or others.

11. Finally, the Prosecution argues that it has already disclosed all material in its possession as part of the full and open disclosure provided by the Prosecution throughout these proceedings. According to the Prosecution, the Defence has not made a prima facie showing that any information concerning any irregular forces operating outside of the Konjic municipality is relevant and exculpatory.

12. Exculpatory material within the meaning of Rule 68 of the Rules is such material which is known to the Prosecutor and which is favourable to the accused in the sense that it tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence. It is important for the exercise of the power to compel disclosure for the applicant to show that the Prosecutor knew of the existence of the material and that it is in his possession.

13. As both parties quite correctly indicated, the Defence is required to make a prima facie showing of the exculpatory nature of the information which it seeks from the Prosecution. This principle was stated clearly in the case of the Prosecutor v. Tihomir Blaskic (Prosecutor v. Tihomir Blaskic, IT-95-14-PT, Decision on the Production of Discovery Materials, 27 January 1997) ("Blaskic Decision"). In this case Trial Chamber I decided that the Defence "must submit to the Trial Chamber all prima facie proofs tending to make it likely that the evidence is exculpatory and is in the Prosecutor’s possession" ("Blaskic Decision", para. 50). The first question before the Trial Chamber is, therefore, whether the Defence has succeeded in establishing, prima facie, the exculpatory nature of the materials sought.

14. For a correct appreciation of the Request, it is necessary to place it within the framework of the general duty of the Prosecution to disclose information under Rule 66 of the Rules. Rule 66 (B) provides for the disclosure of evidence in the custody or control of the Prosecutor which is material to the preparation of the Defence. In the Blaskic Decision, the Trial Chamber stated that evidence "which is material for the preparation of the Defence" necessarily includes evidence "which in any way tends to suggest the innocence or mitigate the guilt of the accused" (Blaskic Decision, para. 49). It is clear that information which is exculpatory will always be material for the preparation of the Defence. When deciding the Motion by the accused Zejnil Delalic for the disclosure of evidence (Prosecutor v. Zejnil Delalic, IT-96-21-T, Decision on Motion by the Accused Zejnil Delalic for the Disclosure of Evidence, 26 September 1996) ("Delalic Decision"), Trial Chamber II stated that "[tChe Defence has failed to identify specific material that the Prosecution has within its custody and control to which it has not given the Defence access. Given the absence of a specific identification of material evidence that the Defence alleges the Prosecution has withheld, it is inappropriate for the Trial Chamber to intervene at this time" (Delalic Decision, para. 10).

15. The Trial Chamber agrees with the position taken in both cases and firmly believes that any request for disclosure of information should clearly specify the material desired. The Request before the Trial Chamber fails to do so. It generally refers to all the evidence in the hands of the Office of the Prosecutor concerning the conduct of forces of the Republic of Serbia, the Bosnian Serbs and others. The Rules permitting disclosure of certain documents cannot be used freely as a means to obtain all information from the Prosecution and then subsequently to determine whether it can be used or not.

16. The Trial Chamber is not persuaded by the arguments of the Defence, stating that any information concerning possible violations by the Bosnian Serb troops or by other irregular forces outside the Konjic region can be considered as exculpatory. The Trial Chamber does not consider it opportune to enter into a discussion concerning the requirements that need to be met for someone to be considered a prisoner of war. This is a matter which will be considered by the Trial Chamber once all the evidence has been presented to it.

17. However, the Trial Chamber fails to see how information about possible violations of the laws and customs of war by certain armed forces might tend to suggest the innocence of the accused or mitigate his guilt. First, the Indictment against Hazim Delic charges him in various counts with a Grave Breach of the Geneva Conventions of 1949, punishable under articles 2 and 7(1) of the Statute of the International Tribunal. The Indictment does not at any time restrict the application of the 1949 Geneva Conventions to the Geneva Convention on Prisoners of War. Hence, the victims can be protected either as prisoners of war or as civilians, under the Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War ("Geneva Convention on the Protection of Civilians"). Any information showing that the victims perhaps cannot be considered as prisoners of war does not suggest the innocence of the accused, as these persons might well be protected under the Geneva Convention on the Protection of Civilians. Secondly, the Trial Chamber does not see how this information could mitigate the guilt of the accused. It is clear that prior violations of the laws and customs of war can never be considered as an excuse for later violations of such laws and customs. This would only lead to a further escalation of criminal violence.

18. The Trial Chamber believes, therefore, that the Defence has failed to indicate the specific material it regards as exculpatory and which should be disclosed pursuant to Rule 68. Moreover, the Defence has failed to show prima facie that the information it seeks to be disclosed is in actual fact exculpatory.

For the foregoing reasons,

HEREBY DENIES the Request Pursuant to Rule 68 for Exculpatory Information.

Done in both English and French, the English text being authoritative.

______________________________

Adolphus Godwin Karibi-Whyte

Presiding Judge

Dated this twenty-fourth day of June 1997,

The Hague,

The Netherlands.

[Seal of the Tribunal]

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